Support

A cookie is a piece of data stored by your browser or device that helps websites like this one recognize return visitors. We use cookies to give you the best experience on BNA.com. Some cookies are also necessary for the technical operation of our website. If you continue browsing, you agree to this site’s use of cookies.

President Donald Trump’s new travel ban doesn’t appear to affect businesses much differently
than the first one, but employers won’t know for sure until they see it in practice.

The terms of the March 6
executive order state that foreign nationals from the six countries named in the ban—Iran, Libya,
Somalia, Sudan, Syria and Yemen—who already have valid visas or green cards won’t
be affected. But there’s still a chance they’ll face additional scrutiny if they travel,
attorney Jeffrey Bell of Polsinelli, a law firm in Kansas City, Mo., told Bloomberg
BNA.

The “hope” is that the new order will make it easier for foreign nationals to travel
because of additional clarity as to who’s covered and who isn’t, Bell said. But “I
still think that businesses are going to take the wait-and-see approach to see how
it’s implemented” before deciding on travel policies for their employees, he said.

Replaces January Order

The new executive order, which goes into effect March 16, replaces one issued Jan.
27. The earlier order applied more broadly, banning the admission of foreign nationals
from Iraq as well as the six countries covered by the March 6 order. It also directed
the revocation of visas that had been issued to individuals from those seven countries
and covered people from those countries with green cards—until that provision was
waived by Homeland Security Secretary John Kelly.

It was subject to numerous lawsuits and was blocked nationwide by a federal judge
in Washington state.

Under the March 6 order, anyone who already holds a valid visa or has a green card
won’t be denied entry to the U.S. Nationals of the six countries who already are in
the U.S. also won’t be affected, unless they leave the U.S. and need a new visa to
come back.

The new order is “more tightly drafted,”
but it’s “still questionable” whether it will hold up in court, Susan Cohen of Mintz,
Levin, Cohn, Ferris, Glovsky &
Popeo in Boston told Bloomberg BNA March 6. All of the countries on the list are still
majority-Muslim countries, so the order continues to support the argument that it
is a “Muslim ban,” she said.

‘A Little Easier’ to Travel

The order makes it “a little easier”
for people and businesses to deal with travel to and from the U.S., said Cohen, who
chairs her firm’s immigration practice. But some of that depends on whether the foreign
national has a single-entry visa or a multiple-entry visa, she said. Those with a
valid single-entry visa can come to the U.S., but if they leave and want to return
after March 16, that could be a problem, she said.

The order suspends entry for individuals from the six named countries for 90 days—but
it could last longer than that, Bell said. That’s because the lifting of the ban is
contingent on the countries implementing sufficient security measures and information
sharing such that the U.S. government believes it can adequately vet visa applicants.
For some countries, that could be a tall order, he said.

Most of those countries are still “broken states” that won’t be able to provide the
requisite information, Jorge Lopez of Littler Mendelson in Miami told Bloomberg BNA
March 6. “I just don’t see the practicality of this being done in the 90-day time
period,” he said.

It likely will be “less chaotic”
at the airports now than after the Jan. 27 ban, in part because of the delayed effective
date, said Lopez, who chairs the firm’s global mobility and immigration practice.
But there still could be “logistical concerns” if Customs and Border Protection agents
aren’t properly trained and they have to make “interpretations on the spot” of the
new order’s provisions, he said.

“Any time there’s a rule change that affects processing,” there will be “a little
bit of rockiness” in the initial interpretation, Lopez said.

‘We Don’t Know What the Rules Are.’

But businesses want clarity when it comes to properly handling their workforces, he
said. “One of the biggest problems” Lopez said he hears is “we don’t know what the
rules are and the rules tend to change day to day.”
Companies aren’t sure if they should just “park someone in Cleveland” and tell him
or her not to leave the country for the visa’s duration, he said.

There’s also a potential “byproduct”
of somebody being stuck outside the U.S. because of the travel ban:
an employment relationship developing with the country the employee is working in,
Lopez said.

If an employee can’t come or return to the U.S. as a result of the executive order,
the business could consider having that employee work remotely, he said. However,
depending on how long it takes for the employee’s visa to be approved—if at all—that
could subject the business to the employment laws of the country where the employee
is working, Lopez said.

In that regard, businesses are still “trying to determine what the right plans are
for travel for those employees”
affected by the new order, Bell said. And if remote work isn’t possible, they may
have to terminate the employment of some workers, he said.

Heightened Screening

It’s not just the executive order that could put a crimp in businesses’ operations.
Trump also issued a
memorandum March 6 that directs the administration to develop “heightened”
screening and vetting procedures for all visa applicants from all over the world—what
the president referred to as “extreme vetting” during the campaign.

That’s going to “further delay the already sometimes lengthy visa application process,”
Cohen said. The “existing process is quite rigorous, despite what the president has
said,” she added. It already could take as many as six to eight weeks—or longer—to
get a visa after applying, she said.

And the memo doesn’t just apply to visas. It also applies to “immigration benefits"—immigration
applications filed from within the U.S., Cohen said. That means there could be “extremely
lengthy waiting periods for things to get adjudicated,” she said. And processing times
for visas like H-1Bs—reserved for skilled workers in “specialty occupations"—are taking
“an inordinate amount of time as it is,” she said.

Combining the travel ban with additional processing times “without a doubt” will lead
to the “wheels of the system slowing down,” Lopez said. And businesses will have to
decide how to manage a workforce when there are “slower processing times across the
board,” he said.

How much longer things will take depends on what those enhanced screening procedures
look like, Bell said. Trump’s separate order directing a federal hiring freeze also
could play a role, he said. “Will additional resources be made available to conduct
additional vetting?” Bell asked.

So far all of the Trump administration’s actions on immigration have related to enforcement,
Cohen said. “They don’t seem to be saying anything at all about a desire to improve
the benefits issuing side of immigration,” she said.

That’s been a “frustration to the business community,” Cohen said. Businesses are
“doing everything the right way,” but their concerns have been “swept aside” because
of “hysteria” over terrorism and national security, she said.

To contact the reporter on this story: Laura D. Francis in Washington at
lfrancis@bna.com

All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to books@bna.com.

Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)

Notify me when updates are available (No standing order will be created).

This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to research@bna.com.

Put me on standing order

Notify me when new releases are available (no standing order will be created)